Migratory Bird Hunting; Regulations Designed To Reduce the Mid- Continent Light Goose Population

SUMMARY: This rule amends the Fish and Wildlife Service regulations

based on recent Congressional action that effectively reinstated

regulations intended to reduce the population of mid-continent light

geese (MCLG). The new law authorizes the use of additional hunting

methods (electronic calls and unplugged shotguns) to increase take of

MCLG. In addition, a conservation order for the reduction of the MCLG

population was authorized.

DATES: This rule is effective on December 20, 1999, and shall be in

force until May 15, 2001, at the latest.

ADDRESSES: Copies of the Environmental Assessment are available by

writing to the Chief, Office of Migratory Bird Management, U.S. Fish

and Wildlife Service, Department of the Interior, ms 634--ARLSQ, 1849 C

Street NW., Washington, D.C. 20240.

FOR FURTHER INFORMATION CONTACT: Jon Andrew, Chief, Office of Migratory

Bird Management, Department of the Interior, ms 634--ARLSQ, 1849 C

Street, NW., Washington, DC 20240; (703) 358-1714.

SUPPLEMENTARY INFORMATION: The Service (or ``we'') promulgated

regulations on February 16, 1999, (64 FR 7507; 64 FR 7517) that

authorized additional methods of take of mid-continent light geese and

established a conservation order for the reduction of the MCLG

population. In issuing those regulations, we indicated that we would

initiate preparation of an Environmental Impact Statement (EIS)

beginning in 2000 to consider the effects on the human environment of a

range of long-term resolutions for the MCLG population problem. Those

regulations were subsequently challenged in a United States District

Court by the Humane Society of the United States (HSUS) and other

groups. Though the judge refused to preliminarily enjoin the program,

he did indicate a likelihood that the plaintiffs might prevail on the

EIS issue when the lawsuit proceeded. In light of our earlier

commitment to prepare an EIS on the larger, long-term program and to

preclude further litigation on the issue, we published a Notice of

Intent to begin immediate preparation of the EIS (May 13, 1999; 64 FR

26268). Subsequent to this action, we withdrew the regulations

promulgated on February 16, 1999 (June 17, 1999; 64 FR 32778). On

November 10, 1999, Congress passed the Arctic Tundra Habitat Emergency

Conservation Act (Act), which effectively reinstated the MCLG

regulations that we withdrew on June 17, 1999. The Act was signed by

the President on November 24, 1999 (Pub. L. 106-108). The Act stated

that, ``the rules published by the Service on February 16, 1999, * * *

shall have the force and effect of law.'' (Section 3(a)(1)). In

addition, it provided that, (t)he Secretary, acting through the

Director * * * shall take such action as is necessary to appropriately

notify the public . . .'' We have determined that amending the CFR by

use of this document is the most appropriate method.

Background

Lesser snow (Anser caerulescens caerulescens) and Ross' (Anser

rossii) geese that primarily migrate through the Mississippi and

Central Flyways are collectively referred to as mid-continent light

geese (MCLG). They are referred to as ``light'' geese due to the light

coloration of the white-phase plumage form, as opposed to ``dark''

geese such as the white-fronted or Canada goose. We include both

plumage forms of geese (white, or ``snow,'' and dark, or ``blue'')

under the designation light geese. MCLG breed in the central and

eastern arctic and subarctic regions of northern Canada. The total MCLG

population is experiencing a high population growth rate and has become

seriously injurious to its arctic and subarctic breeding grounds

through the feeding actions of geese. Our management goal is to reduce

the MCLG population by 50% by the year 2005 in order to prevent further

habitat degradation.

We have attempted to curb the growth of the total MCLG population

by increasing bag and possession limits and extending the open hunting

season length for light geese to 107 days, the maximum allowed by the

Migratory Bird Treaty. However, due to the rapid rise in the MCLG

population, low hunter success, and low hunter interest, harvest rate

(the percentage of the population that is harvested) has declined

despite evidence that the actual number of geese harvested has

increased (USFWS 1997b). The decline in harvest rate indicates that the

past management strategies were not sufficient to stabilize or reduce

the population growth rate.

On February 16, 1999, we published rules that: (1) Authorized

additional methods of take of MCLG (electronic calls and unplugged

shotguns; 64 FR 7507); and (2) created a conservation order for the

reduction of the MCLG population (64 FR 7517). These actions were

designed to reduce the population of MCLG over a period of several

years in order to bring the population to a level that their breeding

habitat can support. We prepared an Environmental Assessment (EA) in

support of this program, which resulted in a Finding of No Significant

Impact.

On February 25, 1999, several groups filed a complaint in the

District Court for the District of Columbia seeking an injunction

against these regulations. On March 2, 1999, the plaintiffs filed a

motion for a preliminary injunction against the two rules cited above.

The lawsuit alleged that we had implemented the rules without adequate

scientific evidence that MCLG were causing habitat destruction, that we

did not have the authority under the Migratory Bird Treaty to allow

take of MCLG after March 10, and that an EIS should have been prepared

prior to implementation of the rules. In his memorandum opinion, the

judge indicated that ``the scientific evidence regarding the

overpopulation of snow geese strongly favors FWS'' and that we had

exercised a reasonable use of our authority under the Migratory Bird

Treaty Act to initiate population control measures. Although the judge

refused to issue an injunction, he did indicate a likelihood that

plaintiffs might succeed on their argument that an EIS should have been

prepared. In order to avoid further litigation, and because we had

earlier indicated we would begin preparing in the year 2000 an EIS on

the larger, long-term program, we decided to withdraw the regulations

and begin immediate preparation of the EIS. On August 30, 1999, we

published a schedule of nine public scoping meetings to receive public

input on the issues and management alternatives that should be analyzed

in the EIS. The public comment period for the scoping process ended on

November 22, 1999. We anticipate publication of a draft EIS in late

winter of 2000.

On November 10, 1999, Congress passed and on November 24, 1999, the

President signed into law the Arctic Tundra Habitat Emergency

Conservation Act (Pub. L. 106-108) to ``reduce the population of mid-

continent light geese,'' and ``to assure the long-term conservation of

mid-continent light geese and the biological diversity of the

[[Page 71237]]

ecosystem upon which many North American migratory birds depend'' (Pub.

L. 106-108). The Act further states that, ``the rules published by the

Service on February 16, 1999, relating to use of additional hunting

methods to increase the harvest of mid-continent light geese (64 FR

7517-7528) and the establishment of a conservation order for the

reduction of mid-continent light goose populations (64 FR 7514-7528),

shall have the force and effect of law.'' The Act instructed the

Secretary of Interior, acting through the Director of the Service, to

take such action as is necessary to appropriately notify the public of

the force and effect of the rules referenced above. The Act remains in

effect until, ``the latest of--

(A) The effective date of rules issued by the Service after such

date of the enactment to control overabundant mid-continent light geese

populations;

(B) The date of the publication of a final environmental impact

statement for such rules under section 102(2)(C) of the National

Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)); and

(C) May 15, 2001.''

The Act further directs the Secretary to, ``prepare, and as

appropriate implement, a comprehensive, long-term plan for the

management of mid-continent light geese and the conservation of their

habitat.'' The Act requires that, ``The plan shall apply principles of

adaptive resource management and shall include--

(1) A description of methods for monitoring the levels of

populations and the levels of harvest of mid-continent light geese, and

recommendations concerning long-term harvest levels;

(2) Recommendations concerning other means for the management of

mid-continent light goose populations, taking into account the reasons

for the population growth specified in section 102(a)(3);

(3) An assessment of, and recommendations relating to, conservation

of the breeding habitat of mid-continent light geese;

(4) An assessment of, and recommendations relating to, conservation

of native species of wildlife adversely affected by the overabundance

of mid-continent light geese, including the species specified in

section 102(a)(5); and

(5) An identification of methods for promoting collaboration with

the Government of Canada, States, and other interested persons.''

Public Comment

We are establishing this final rule without the standard notice for

public comment. As required by the Administrative Procedure Act (5

U.S.C. 553(b)(B)), we have found that the notice and public procedure

required by the APA are impracticable, unnecessary, and contrary to the

public interest for the following reasons: (1) We are reinstating the

rule at the direction of Congress; (2) public comment can not change

the Congressional action; and (3) providing an unnecessary comment

period at this time might preclude some affected States from

implementing the expanded hunting methods and conservation order on

time.

Effective Date

Under 5 U.S.C. 553 (d)(3), we find good cause to make the rule

effective upon publication because, for the following reasons, it is

unnecessary and not in the public interest. Reinstatement of these

rules is being done as a result of a directive contained in law. We are

reinstating rules with regard to light geese that were in place

previously and which were adopted after notice and opportunity for

public comment. In addition, under 5 U.S.C. Sec. 553 (d)(1), this is a

substantive rule that relieves the current restrictions on taking light

geese.

Required Determinations

We published all of the required determinations in the February 16,

1999, final rules (64 FR 7507; 64 FR 7517).

Authorship. The primary author of this final rule is James R.

Kelley, Jr., Office of Migratory Bird Management.

List of Subjects in 50 CFR Parts 20 and 21

Exports, Hunting, Imports, Reporting and recordkeeping

requirements, Transportation, Wildlife.

For the reasons given in the preamble, we hereby amend Parts 20 and

21, of subchapter B, chapter I, title 50 of the Code of Federal

Regulations, as set forth below:

PART 20--[AMENDED]

1. The authority citation for part 20 is revised to read as

follows:

Authority: 16 U.S.C 703-712; 16 U.S.C. 742 a-j; Pub. L. 106-108.

2. Revise paragraphs (b) and (g) of Sec. 20.21 to read as follows:

Sec. 20.21 What hunting methods are illegal?

* * * * *

(b) With a shotgun of any description capable of holding more than

three shells, unless it is plugged with a one-piece filler, incapable

of removal without disassembling the gun, so its total capacity does

not exceed three shells. This restriction does not apply during a

light-goose-only season (lesser snow and Ross' geese) when all other

waterfowl and crane hunting seasons, excluding falconry, are closed

while hunting light geese in Central and Mississippi Flyway portions of

Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky,

Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana,

Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota,

Tennessee, Texas, Wisconsin, and Wyoming.

* * * * *

(g) By the use or aid of recorded or electrically amplified bird

calls or sounds, or recorded or electrically amplified imitations of

bird calls or sounds. This restriction does not apply during a light-

goose-only season (lesser snow and Ross' geese) when all other

waterfowl and crane hunting seasons, excluding falconry, are closed

while hunting light geese in Central and Mississippi Flyway portions of

Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky,

Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana,

Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota,

Tennessee, Texas, Wisconsin, and Wyoming.

* * * * *

Sec. 20.22 [Amended]

3. In Sec. 20.22, the phrase ``except as provided in part 21'' is

added following the word ``season'.

PART 21--[AMENDED]

4. The authority citation for part 21 is revised to read as

follows:

Authority: Pub. L. 95-616; 92 Stat. 3112 (16 U.S.C. 712(2));

Pub. L. 106-108.

5. Subpart E, consisting of Sec. 21.60, is added to read as

follows:

Subpart E--Control of Overabundant Migratory Bird Populations

Sec. 21.60 Conservation order for mid-continent light geese.

(a) Which waterfowl species are covered by this order? This

conservation order addresses management of lesser snow (Anser c.

caerulescens) and Ross' (Anser rossii) geese that breed, migrate, and

winter in the mid-continent portion of North America, primarily in the

Central and Mississippi Flyways (mid-continent light geese).

(b) In what areas can the conservation order be implemented? (1)

The following States, or portions of States,

[[Page 71238]]

that are contained within the boundaries of the Central and Mississippi

Flyways: Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas,

Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri,

Montana, Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South

Dakota, Tennessee, Texas, Wisconsin, and Wyoming.

(2) Tribal lands within the geographic boundaries in paragraph

(b)(1) of this section.

(3) The following areas within the boundaries in paragraph (b)(1)

of this section are closed to the conservation order after 10 March of

each year: Monte Vista National Wildlife Refuge (CO); Bosque del Apache

National Wildlife Refuge (NM); the area within 5 miles of the Platte

River from Lexington, Nebraska, to Grand Island, Nebraska; the

following area in and around Aransas National Wildlife Refuge; those

portions of Refugio, Calhoun, and Aransas Counties that lie inside a

line extending from 5 nautical miles offshore to and including Pelican

Island, thence to Port O'Conner, thence northwest along State Highway

185 and southwest along State Highway 35 to Aransas Pass, thence

southeast along State Highway 361 to Port Aransas, thence east along

the Corpus Christi Channel, thence southeast along the Aransas Channel,

extending to 5 nautical miles offshore; except that it is lawful to

take mid-continent light geese after 10 March of each year within the

Guadalupe WMA. If at any time we receive evidence that a need to close

the areas in this paragraph (b)(3) no longer exists, we will publish a

proposal to remove the closures in the Federal Register.

(c) What is required in order for State/Tribal governments to

participate in the conservation order? Any State or Tribal government

responsible for the management of wildlife and migratory birds may,

without permit, kill or cause to be killed under its general

supervision, mid-continent light geese under the following conditions:

(1) Activities conducted under this section may not affect

endangered or threatened species as designated under the Endangered

Species Act.

(2) Control activities must be conducted clearly as such and are

intended to relieve pressures on migratory birds and habitat essential

to migratory bird populations only and are not to be construed as

opening, reopening, or extending any open hunting season contrary to

any regulations promulgated under section 3 of the Migratory Bird

Treaty Act.

(3) Control activities may be conducted only when all waterfowl and

crane hunting seasons, excluding falconry, are closed.

(4) Control measures employed through this section may be

implemented only between the hours of one-half hour before sunrise to

one-half hour after sunset.

(5) Nothing in this section may limit or initiate management

actions on Federal land without concurrence of the Federal agency with

jurisdiction.

(6) States and Tribes must designate participants who must operate

under the conditions of this section.

(7) States and Tribes must inform participants of the requirements/

conditions of this section that apply.

(8) States and Tribes must keep records of activities carried out

under the authority of this section, including the number of mid-

continent light geese taken under this section, the methods by which

they were taken, and the dates they were taken. The States and Tribes

must submit an annual report summarizing activities conducted under

this section on or before August 30 of each year to the Chief, Office

of Migratory Bird Management, U.S. Fish and Wildlife Service,

Department of the Interior, ms 634--ARLSQ, 1849 C Street NW.,

Washington, D.C. 20240.

(d) What is required for individuals to participate in the

conservation order? Individual participants in State or tribal programs

covered by this section are required to comply with the following

requirements:

(1) Nothing in this section authorizes the take of mid-continent

light geese contrary to any State or Tribal laws or regulations, and

none of the privileges granted under this section may be exercised

unless persons acting under the authority of the conservation order

possess whatever permit or other authorization(s) required for such

activities by the State or Tribal government concerned.

(2) Participants who take mid-continent light geese under this

section may not sell or offer for sale those birds nor their plumage,

but may possess, transport, and otherwise properly use them.

(3) Participants acting under the authority of this section must

permit at all reasonable times, including during actual operations, any

Federal or State game or deputy game agent, warden, protector, or other

game law enforcement officer free and unrestricted access over the

premises on which such operations have been or are being conducted, and

must promptly furnish whatever information an officer requires

concerning the operation.

(4) Participants acting under the authority of this section may

take mid-continent light geese by any method except those prohibited as

follows:

(i) With a trap, snare, net, rifle, pistol, swivel gun, shotgun

larger than 10 gauge, punt gun, battery gun, machine gun, fish hook,

poison, drug, explosive, or stupefying substance;

(ii) From or by means, aid, or use of a sinkbox or any other type

of low-floating device having a depression affording the person a means

of concealment beneath the surface of the water;

(iii) From or by means, aid, or use of any motor vehicle, motor-

driven land conveyance, or aircraft of any kind, except that

paraplegics and persons missing one or both legs may take from any

stationary motor vehicle or stationary motor-driven land conveyance;

(iv) From or by means of any motorboat or other craft having a

motor attached, or any sailboat, unless the motor has been completely

shut off and the sails furled, and its progress therefrom has ceased. A

craft under power may be used only to retrieve dead or crippled birds;

however, the craft may not be used under power to shoot any crippled

birds;

(v) By the use or aid of live birds as decoys; although not limited

to, it will be a violation of this paragraph for any person to take

mid-continent light geese on an area where tame or captive live geese

are present unless such birds are and have been for a period of 10

consecutive days before the taking, confined within an enclosure that

substantially reduces the audibility of their calls and totally

conceals the birds from the sight of mid-continent light geese;

(vi) By means or aid of any motor-driven land, water, or air

conveyance, or any sailboat used for the purpose of or resulting in the

concentrating, driving, rallying, or stirring up of mid-continent light

geese;

(vii) By the aid of baiting, or on or over any baited area. As used

in this paragraph, ``baiting'' means the placing, exposing, depositing,

distributing, or scattering of shelled, shucked, or unshucked corn,

wheat or other grain, salt, or other feed so as to constitute for such

birds a lure, attraction, or enticement to, on, or over any areas where

hunters are attempting to take them; and ``baited area'' means any area

where shelled, shucked, or unshucked corn, wheat, or other grain, salt,

or other feed capable of luring, attracting, or enticing such birds is

directly or indirectly placed, exposed, deposited, distributed, or

scattered; and such area shall remain a baited area for 10 days

following complete removal of all such

[[Page 71239]]

corn, wheat or other grain, salt, or other feed. However, nothing in

this paragraph prohibits the taking of mid-continent light geese on or

over standing crops, flooded standing crops (including aquatics),

flooded harvested croplands, grain crops properly shucked on the field

where grown, or grains found scattered solely as the result of normal

agricultural planting or harvesting; or

(viii) Participants may not possess shot (either in shotshells or

as loose shot for muzzleloading) other than steel shot, or bismuth-tin,

or other shots that are authorized in 50 CFR 20.21(j). Season

limitations in that section do not apply to participants acting under

this order.

(e) Under what conditions would the conservation order be revoked?

The Service will annually assess the overall impact and effectiveness

of the conservation order to ensure compatibility with long-term

conservation of this resource. If at any time we receive evidence that

clearly demonstrates a serious threat of injury to the area or areas

involved no longer exists, we will initiate action to revoke the

conservation order.

(f) Will information concerning the conservation order be

collected? The information collection requirements of the conservation

order have been approved by OMB and assigned clearance number 1018-

0103. Agencies may not conduct or sponsor, and a person is not required

to respond to, a collection of information unless it displays a

currently valid OMB control number. The recordkeeping and reporting

requirements imposed under regulations established in this subpart E

will be used to administer this program, particularly in the assessment

of impacts alternative regulatory strategies may have on mid-continent

light geese and other migratory bird populations. The information

collected will be required to authorize State and Tribal governments

responsible for migratory bird management to take Mid-continent light

geese within the guidelines provided by the Service.

Dated: December 10, 1999.

Stephen C. Saunders,

Acting Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 99-32685 Filed 12-17-99; 8:45 am]

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